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Benz v. Dep't of Children & Family Servs.

Court of Appeals of Illinois, First District, Fifth Division

February 6, 2015

MICHAEL T. BENZ and LYNN M. BENZ, Plaintiffs-Appellants,

Page 188

Appeal from the Circuit Court of Cook County. No. 11 CH 43956. The Honorable Neil Cohen, Judge, presiding.


On appeal from the circuit court's order affirming the determination of the Department of Children and Family Services that a minor who had been removed from the plaintiff foster parents' home should remain with a relative, the appellate court found that the plaintiffs' due process claims were moot where the relative's adoption of the minor became finalized and the public interest exception to the mootness doctrine did not apply.

For APPELLANT: Michael T. Benz, of LaGrange, and The Law Offices of Theodore J. Adams, P.C., of Rosemont (Theodore J. Adams, of counsel).

For APPELLEE: Lisa Madigan, Attorney General, State of Illinois (Michael A. Scodro, Solicitor General, and Laura Wunder, Assistant Attorney General, of counsel).

PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Gordon concurred in the judgment and opinion.


Page 189


[¶1] Plaintiffs, Michael and Lynn Benz, served as foster parents for the minor, J.C., for approximately nine months. Following removal of the minor by the Department of Children and Family Services (DCFS), plaintiffs unsuccessfully pursued an administrative appeal, and then sought administrative review in the circuit court. Plaintiffs appeal from the circuit court's decision affirming DCFS's final administrative determination that J.C. should remain with a relative in Tennessee, Angela B. Plaintiffs concede that during the pendency of this case, Angela B.'s adoption of J.C. became finalized. As in the circuit court, the State maintains on appeal that plaintiffs' claims are moot.[1] Plaintiffs argue the public interest exception to the doctrine of mootness applies in this case

Page 190

and this court should therefore review their claims.


[¶3] We recognize that this case involves an extensive record from the circuit court and administrative proceedings below. However, given our ultimate resolution of the case, we discuss the facts only to the extent necessary to resolve the dispositive issues on appeal.

[¶4] J.C. was born on July 29, 2009, and taken into protective custody by DCFS on October 17, 2009, after his biological mother was arrested.[2] His father was incarcerated at the time. J.C. was placed in foster care with plaintiffs on October 28, 2009, with the initial goal being to return J.C. home to his biological mother. However, J.C.'s mother died on March 4, 2010, of a drug overdose. J.C.'s caseworker with Child Link, the welfare agency contracted with DCFS, asked plaintiffs whether they would be interested in adopting J.C., and they indicated that they were willing to do so. However, Angela B., a paternal relative of J.C. who lived in Tennessee, contacted Child Link regarding having J.C. placed with her, and Child Link began the process of creating an interstate compact placement for J.C. In addition, J.C.'s biological father was released from prison and began to have supervised visits with J.C.

[¶5] J.C. lived with plaintiffs for approximately nine months until he was removed on July 19, 2010, following an incident in plaintiffs' home on Saturday, July 17, 2010, when he was burned by a hot curling iron while being supervised by plaintiffs' 22-year-old daughter. Plaintiffs left a message on the office phone of J.C.'s Child Link caseworker, Melissa Rodriguez, regarding the incident, but did not contact Rodriguez on her cellular telephone or call Child Link's after-hours emergency number. In addition, plaintiffs took J.C. to a friend and neighbor who was a doctor for treatment, instead of taking him to an emergency room. Plaintiffs also canceled J.C.'s scheduled visit with his biological father the next day.

[¶6] Upon learning of the injury, Rodriguez was instructed by her program director, Ayanna Sims, to call the state hotline and report the incident. Rodriguez went to plaintiffs' home to view the injury and then brought J.C. to the emergency room for evaluation on July 19, 2010.

[¶7] Also on July 19, Sims decided that J.C. had to be removed from plaintiffs' home based on the recommendation of the supervisor of the Department of Child Protection (DCP), Marnita Martin-Harris. They believed J.C. was in imminent risk of harm and the circumstances necessitated further investigation.

[¶8] While at the hospital, a worker from DCFS arrived and informed Lynn Benz that J.C. was being removed pending investigation because he had been injured in the home. J.C. was placed in an emergency respite foster home for a few days and later placed with his paternal grandfather and the grandfather's ex-wife. Rodriguez prepared an " unusual incident report" on July 23, 2010.

[¶9] Plaintiffs received a " notice of change of placement" on July 24, 2010, which indicated that J.C. was removed because he suffered second-degree burns, prompting an investigation. The State concedes that, although the notice was dated July 19, 2010, the envelope was postmarked July 23, 2010, and Rodriguez and Sims had backdated the notice to July 19

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even though they prepared it after that date.

[¶10] DCFS initiated an investigation of plaintiffs.[3] In addition, Child Link conducted a licensing investigation of plaintiffs, but ultimately found no licensing violations.

[¶11] Following J.C.'s removal, plaintiffs pursued an administrative appeal for his return. Plaintiffs requested a clinical placement review and an emergency review. See 89 Ill. Adm. Code 337.30, amended at 36 Ill. Reg. 4388 (eff. Mar. 7, 2012). Reviewer Belinda White refused plaintiffs' request for a separate emergency review.

[¶12] The clinical placement review occurred on August 5, 2010. White issued her findings and recommendation on August 12, 2010. White held that although plaintiffs received written notice a few days after J.C. was removed, plaintiffs acknowledged that they were nevertheless orally informed at the time of removal that he was being removed due to the burns he received while in their care. White observed that plaintiffs had provided a caring home, but there were concerns regarding the burn incident; plaintiffs should have taken him to the hospital and not sought care from a neighbor, plaintiffs failed to timely inform Child Link of the injury, and they should not have canceled the visit with his biological father without authorization. White concluded that J.C. was at imminent risk of harm prior to removal. She determined that, as J.C. had been moved on multiple occasions, he should remain with his paternal grandfather while his biological father worked toward reunification. She recommended that if J.C. were to be moved again, he should live with his relatives in Tennessee.

[¶13] Following the clinical placement review, plaintiffs requested a service appeal on August 17, 2010. Plaintiffs also filed an emergency motion to remand to the clinical placement reviewer in order to receive an emergency review. Administrative law judge Lola Fahler denied the motion upon finding that when the change of placement of a child is challenged, the statutorily provided procedure consisted of a clinical placement review followed by a ...

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